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  1. Harmful Changes to Lower Limb Prostheses Coverage
  2. Too Much Reliance on “Improvement” in the Proposed Home Health Value-Based Purchasing (HHVBP) Model
  3. Proposed Revisions to the 2-Midnight Rule Won’t Make Any Significant Change

1. Harmful Changes to Lower Limb Prostheses Coverage

The Center recently called for the elimination of a proposed local coverage determination (LCD) that would drastically reduce Medicare coverage of lower limb prostheses.  The proposed LCD endorses harmful, pain-producing, and independence-robbing strategies for those who need lower limb prostheses.  In comments submitted to the Durable Medical Equipment Medicare Administrative Contractors (DME MAC), the Center argued the proposed LCD arbitrarily eliminates coverage, creates higher risk of complications for prostheses wearers, adds discriminatory and offensively ignorant prerequisites, and inexplicably removes the expertise of licensed and certified prosthetists from consideration.

In addition to the proposed LCD unfairly and illegally restricting Medicare coverage, the Center believes it violates individuals’ civil rights and tenets of the Affordable Care Act.  Strong public outcry against the proposed LCD has included a public protest at the Department of Health and Human Services (HHS) and a successful “We the People” petition that garnered over 100,000 signatures (in part thanks to responders to the Center’s Action Alert on the issue).  Reaching 100,000 signatures has triggered the White House to say they will review and respond to the issue.  Other action has included direct pleas from advocates, veterans, and elected officials to HHS Secretary Burwell to rescind the proposed LCD.  The deadline for comments to the DME MAC was August 31, 2015.

Read our full comments at: https://www.medicareadvocacy.org/comments-regarding-proposed-draft-lcd-on-lower-limb-prostheses-dl33787/.  

2. Too Much Reliance on “Improvement” in the Proposed Home Health Value-Based Purchasing (HHVBP) Model

The Center for Medicare Advocacy (the Center) has submitted comments to a proposed rule by the Centers for Medicare and Medicaid Services (CMS) about the Home Health Prospective Payment System Rate Update. The Center is concerned that the proposed Home Health Value-Based Purchasing (HHVBP) Model relies too heavily on “improvement” to measure quality outcomes in assessing Home Health Agencies.

CMS’ almost exclusive emphasis on “improvement” in the quality measures will create financial incentives for Home Health Agencies (HHAs) to select patients who are less sick and need short-term care and in particular, therapy, as opposed to complex nursing for long-term chronic conditions. Conversely, there will be a financial disincentive for HHAs to deliver care to clinically-complex and vulnerable beneficiaries who may be sicker, need care for a longer period of time, or who are less likely to show functional or clinical improvement.

CMS has proposed that the HHVBP Model will be implemented as of January 1, 2016 and would test whether subjecting Medicare-certified HHAs to significant payment adjustments (up to 8% bonus or penalty) would result in better quality of care.  Under the HHVBP Model, all HHAs in nine states (MA, MD, NC, FL, WA, AZ, IA, NE, TN) would be scored on the quality of care delivered based on their performance on measures compared to that of their peers and compared to their own past performance.  CMS also proposes reductions to the national standardized 60-day episode payment rate in CY 2016 and CY 2017 and case-mix weight updates.

Read our full comments at: https://www.medicareadvocacy.org/comments-on-proposed-rules-cy-2016-home-health-prospective-payment-system-rate-update-home-health-value-based-purchasing-model-and-home-health-quality-reporting-requirements/.

3. Proposed Revisions to the 2-Midnight Rule Won’t Make Any Significant Change

In the annual update to Medicare reimbursement of acute care hospitals for outpatient care, the Centers for Medicare & Medicaid Services (CMS) included proposed revisions to the “2-midnight” rule and its enforcement.  The 2-midnight rule was promulgated in 2013, creating, for the first time in the Medicare program, time-based presumptions of patient status in acute care hospitals.  The 2-midnight rule has been controversial from the beginning and its implementation was delayed by both CMS and Congress.  The new proposed rules authorize payment under Medicare Part A of inpatient stays of less than two midnights, on a case-by-case basis, if a physician documents a patient’s need for inpatient care for fewer than 24 hours.  Comments submitted by the Center for Medicare Advocacy suggested that the very modest proposed revision would be unlikely to change practice significantly, for multiple reasons.

  • First, CMS does not provide any meaningful guidance on when an inpatient stay of fewer than two midnights would be appropriate.
  • Second, physician decisions about patient status will continue to be reviewed by hospitals under the same standards as before.
  • Third, CMS confirms that hospitals may continue to use commercial screening tools and that physicians may also want to consider using the tools.  Commercial screening tools, such as InterQual, are based on diagnosis and numbers (e.g., temperature, lab results, and other quantifiable data), not on a clinical assessment of the patient’s status and whether the patient needs the care and services that only a hospital can provide. 
  • Fourth, short inpatient decisions will be prioritized for review by QIO reviewers, sending a clear and strong signal that something is wrong, or at least questionable, with physicians’ and hospitals’ classifying stays of fewer than two midnights as inpatient.
  • Fifth, QIO reviewers will evaluate patients’ admissions by considering the care that was provided after admission.  Retrospective reviews, based on the record of care and treatment provided to a patient after admission, are inappropriate to determine whether the physician made the right decision at the time he or she actually made it.
  • Sixth, the specter of audits by Recovery Auditors remains, with their harsh financial consequences to hospitals resulting in the recoupment of virtually all of Medicare’s payment for that patient’s hospital admission.

In conclusion, with no new standards for physicians, ongoing review of physician decisions by hospitals and CMS reviewers using commercial screening tools, and the continued expectation that inpatient admissions are appropriate only if patients are expected to remain hospitalized for at least two midnights, the proposed rules will result in little, if any, change in physicians’ and hospitals’ decision-making about patient status.

The Center urged CMS to promulgate rules counting all time spent by a patient in an acute care hospital, for purposes of qualifying for Medicare coverage of post-acute care in a skilled nursing facility.  The Center reasoned that CMS has authority, under existing law, to count all the time in the hospital.

Read our full comments at: https://www.medicareadvocacy.org/comments-on-revisions-to-the-2-midnight-rule/

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